Michigan Supreme Court 

Lansing, Michigan 

Chief Justice: Justices: 

Clifford W. Taylor Michael F. Cavanagh 

Elizabeth A. Weaver Opinion Marilyn Kelly 

Maura D. Corrigan 

Robert P. Young, Jr. 

Stephen J. Markman 

FILED JUNE 21, 2006 

PEOPLE OF THE STATE OF MICHIGAN,

 Plaintiff-Appellant, 

v No. 129269 

DELORES MARIE DERROR, 

Defendant-Appellee. 

______________________________ 

PEOPLE OF THE STATE OF MICHIGAN,

 Plaintiff-Appellant, 

v No. 129364 

DENNIS WAYNE KURTS, 

Defendant-Appellee. 

_______________________________ 

BEFORE THE ENTIRE BENCH 

CORRIGAN, J. 

In these consolidated appeals, we are called upon to determine whether 11-

carboxy-THC, a “metabolite” or byproduct of metabolism created when the body 

breaks down THC (tetrahydrocannabinol), the psychoactive ingredient of 

marijuana, is a schedule 1 controlled substance under MCL 333.7212 of the Public 
Health Code. We hold that it is. Thus, a person operating a motor vehicle with 

11-carboxy-THC in his or her system may be prosecuted under MCL 257.625(8), 

which prohibits the operation of a motor vehicle with any amount of a schedule 1 

controlled substance in the body. 

Additionally, in Docket No. 129269, we clarify our decision in People v 

Schaefer, 473 Mich 418; 703 NW2d 774 (2005), and hold that, in a prosecution 

under MCL 257.625(8), a prosecutor is not required to prove beyond a reasonable 

doubt that the defendant knew that he or she might be intoxicated. Rather, the 

prosecutor need only prove that the defendant had any amount of a schedule 1 

controlled substance in his or her body. Accordingly, we reverse the judgment of 

the Court of Appeals and remand both cases to the trial court for further 

proceedings consistent with this opinion. 

I. FACTUAL BACKGROUND 

In Docket No. 129269, defendant Delores M. Derror was driving east on 

snow- and slush-covered M-72 when she crossed into oncoming traffic and 

collided with another vehicle, killing the front-seat passenger, paralyzing two 

children in the rear seat, and injuring a third child. The accident occurred at 

approximately 6:00 p.m. Derror admitted that she had smoked marijuana, at 2:00 

p.m., earlier that day. Two blood samples were taken, one at approximately 8:00 

p.m. and one at approximately 11:00 p.m. The first blood sample reflected 38 

nanograms of 11-carboxy-THC per milliliter, and the second contained 31 

nanograms of 11-carboxy-THC per milliliter. Derror was charged with operating 

2
 
 

a motor vehicle with the presence of a schedule 1 controlled substance in her 

body, causing death and serious injury, under MCL 257.625(4), (5), and (8). 

Derror was also charged with possession of marijuana, MCL 333.7403(2)(d). 

In Docket No. 129364, defendant Dennis Kurts was stopped at 

approximately 9:00 p.m. for driving erratically. The officer smelled the odor of 

alcohol on Kurts. Kurts also had glassy, bloodshot eyes. Kurts admitted 

consuming two beers. During a pat-down search, the officer found a marijuana 

pipe in Kurts’ pocket. Kurts then admitted that he had smoked marijuana a halfhour earlier. A blood sample was taken at approximately 10:00 p.m. Tests 

revealed that his blood contained eight nanograms of 11-carboxy-THC per 

milliliter and 0.07 grams of alcohol per 100 milliliters. Kurts was charged with 

operating a motor vehicle while intoxicated, third offense, MCL 257.625(9); 

operating a motor vehicle with the presence of a schedule 1 controlled substance 

in the body, MCL 257.625(8); and operating a vehicle with a suspended or 

revoked license, MCL 257.904(3)(a). 

Pretrial evidentiary hearings were held in both cases in which expert 

testimony regarding the characteristics of marijuana, THC, and 11-carboxy-THC 

was introduced. The Court of Appeals summarized this expert testimony as 

follows: 

The experts agreed that carboxy THC is a “metabolite,” or 

byproduct of metabolism, created in the human body during the 

body’s biological process of converting marijuana into a watersoluble form that can be excreted more easily. Its presence in the 

blood conclusively proves that a person ingested THC at some point 

3
 
in time. However, carboxy THC itself has no pharmacological effect 

on the body and its level in the blood correlates poorly, if at all, to an 

individual’s level of THC-related impairment. In fact, carboxy THC 

could remain in the blood long after all THC has gone, as THC 

quickly leaves the blood and enters the body’s tissues. [People v 

Derror (On Reconsideration), 268 Mich App 67, 71-72; 706 NW2d 

451 (2005).] 

The prosecution expert in Derror, Dr. Michelle Glinn, further testified, 

without dispute: 

THC is taken up into the brain and into fat cells and into other 

tissues, and it leaves its effects on the brain and central nervous 

system for quite a while after it’s not detectible in the blood any 

further. 

The effects of—it causes chemical changes in the brain, 

basically, that persist for quite a while. And you can document 

defects in lab studies of THC beyond the time when it’s no longer 

detectible in the blood. 

In discussing the structural differences between THC and 11-carboxy-THC, 

Dr. Glinn explained, also without dispute, that THC and 11-carboxy-THC are 

identical except that in 11-carboxy-THC, two oxygen atoms are added to, and 

three hydrogen atoms are removed from, the eleventh carbon to make it more 

water soluble and easier to excrete. 

Following the evidentiary hearings, the trial courts in both cases determined 

that the Legislature did not intend to include 11-carboxy-THC as a schedule 1 

controlled substance because it has no pharmacological effect on the human body. 

The trial courts, however, reached divergent results regarding the effect of this 

conclusion. In Kurts, the trial court granted Kurts’s motion to dismiss the charge 

of operating a motor vehicle while under the influence of a schedule 1 controlled 

4
 
 

substance in violation of MCL 257.625(8) on the grounds of insufficient evidence. 

In Derror, however, the trial court ruled that, although 11-carboxy-THC is not 

itself a schedule 1 controlled substance, evidence of 11-carboxy-THC in Derror’s 

blood at the time of testing may be presented to the jury as circumstantial evidence 

to establish that Derror had THC in her blood at the time of driving. 

The prosecutors in both cases appealed to the Court of Appeals, which 

consolidated the appeals and affirmed the trial courts’ rulings that 11-carboxyTHC is not a schedule 1 controlled substance.1 In Kurts, the Court of Appeals also 

reversed the trial court’s dismissal of the MCL 257.625(8) charge, concluding that 

although only 11-carboxy-THC was found in Kurts’s blood, evidence existed from 

which a jury could conclude that Kurts had THC in his blood at the time that he 

was driving.2

 The Court of Appeals reached this conclusion because Kurts 

admitted that he had smoked marijuana one half-hour before he was arrested, and 

because the expert testimony revealed that the presence of 11-carboxy-THC in a 

person’s body conclusively establishes prior ingestion of THC. 

The prosecutors in both cases applied for leave to appeal the Court of 

Appeals determination that 11-carboxy-THC is not a schedule 1 controlled 

substance within the meaning of MCL 257.625(8). In Docket No. 129269, the 

1 People v Derror (On Reconsideration), 268 Mich App 67; 706 NW2d 451 

(2005). 

2 Id. 

5
 
 

 

prosecutor also sought leave to appeal the Court of Appeals determination that, in 

a prosecution involving MCL 257.625(8), a prosecutor must prove that the 

defendant knew he or she might be intoxicated. We granted both applications and 

ordered that the cases be submitted together.3 

II. STANDARD OF REVIEW 

Whether 11-carboxy-THC is a schedule 1 controlled substance under MCL 

333.7212 of the Public Health Code for the purpose of MCL 257.625(8) is a 

matter of statutory interpretation. Statutory interpretation is a question of law that 

is reviewed by this Court de novo. People v Schaefer, 473 Mich 418, 427; 703 

NW2d 774 (2005), citing People v Moore, 470 Mich 56, 61; 679 NW2d 41 (2004), 

and People v Babcock, 469 Mich 247, 253; 666 NW2d 231 (2003). When 

interpreting statutes, our goal is to give effect to the intent of the Legislature by 

applying the plain language of the statute. People v Koonce, 466 Mich 515, 518; 

648 NW2d 153 (2002). 

Whether, in a prosecution involving MCL 257.625(8), the prosecutor must 

prove beyond a reasonable doubt that the defendant knew that he or she might be 

intoxicated is also a question of law that we review de novo. Schaefer, supra at 

427. 

3

 474 Mich 886 (2005); 474 Mich 887 (2005). 

6
 
 

III. 11-CARBOXY-THC IS A SCHEDULE 1 CONTROLLED SUBSTANCE 

UNDER MCL 333.7212(1)(d) 

MCL 257.625(8), which both Kurts and Derror were charged with 

violating, prohibits the operation of a vehicle while a controlled substance is 

present in the body. It provides, in relevant part: 

A person . . . shall not operate a vehicle . . . within this state if 

the person has in his or her body any amount of a controlled 

substance listed in schedule 1 under section 7212 of the public health 

code, 1978 PA 368, MCL 333.7212, or a rule promulgated under 

that section . . . . 

MCL 333.7212(1)(c) specifically lists marijuana as a schedule 1 controlled 

substance, except for certain exceptions not applicable to these cases. 

The term “marijuana” is defined in MCL 333.7106(3) as follows: 

“Marihuana” means all parts of the plant Canabis [sic] sativa 

L., growing or not; the seeds thereof; the resin extracted from any 

part of the plant; and every compound, manufacture, salt, derivative, 

mixture, or preparation of the plant or its seeds or resin. 

In addition to specifically listing marijuana, MCL 333.7212(1)(d) and (e) 

provide that the following substances also qualify as schedule 1 controlled 

substances: 

(d) Except as provided in subsection (2), synthetic equivalents 

of the substances contained in the plant, or in the resinous 

extractives of cannabis and synthetic substances, derivatives, and 

their isomers with similar chemical structure or pharmacological 

activity, or both, such as the following, are included in schedule 1: 

(i) ∆1

 cis or trans tetrahydrocannabinol, and their optical 

isomers. 

7
 
 

(ii) ∆6

 cis or trans tetrahydrocannabinol, and their optical 

isomers. 

(iii) ∆3,4 cis or trans tetrahydrocannabinol, and their optical 

isomers. 

(e) Compounds of structures of substances referred to in 

subdivision (d), regardless of numerical designation of atomic 

positions, are included. 

The Court of Appeals held that 11-carboxy-THC was not a schedule 1 

controlled substance under MCL 333.7212(1)(c) because it is not expressly listed 

in the statute. The Court of Appeals, however, failed to consider other provisions 

of the Public Health Code in reaching its conclusion; specifically, the provision 

that defines marijuana. While MCL 333.7212(1)(c) does not specifically list 11-

carboxy-THC as a schedule 1 controlled substance, it does list marijuana. As 

stated above, the Public Health Code includes within the definition of marijuana 

every compound and derivative of the plant or its seeds or resin. 

THC is the main psychoactive substance found in the cannabis plant. 11-

carboxy-THC is a metabolite of THC in that it is produced when the body 

metabolizes THC. See Stedman’s Online Medical Dictionary, which defines 

“metabolite” as “[a]ny product or substrate (foodstuff, intermediate, waste 

product) of metabolism, especially of catabolism.”4 The question presented 

before us is whether 11-carboxy-THC is also a derivative of THC. 

4

 <http://www.stedmans.com/section.cfm/45> (accessed March 8, 2006). 

8
 
 

We hold that the term "derivative" encompasses metabolites. We construe 

“all words and phrases . . . according to the common and approved usage of the 

language,” but give terms of art and “technical words and phrases” any “peculiar 

and appropriate meaning” ascribed by the Legislature or acquired in common 

usage in the absence of legislative definition. MCL 8.3a; Schaefer, supra at 435. 

In the context of this case, the term “derivative” is a scientific term, definable only 

by reference to scientific dictionaries. 

Medical dictionaries have defined the term “derivative” in a variety of 

ways. Stedman’s Online Medical Dictionary defines a “derivative” as 

“[s]omething produced by modification of something preexisting,” or 

“[s]pecifically, a chemical compound that may be produced from another 

compound of similar structure in one or more steps, as in replacement of H by an 

alkyl, acyl, or amino group.”5

 Under the first part of this definition, 11-carboxyTHC qualifies as a derivative because it is produced when the body breaks down 

or naturally modifies THC. 11-carboxy-THC also qualifies as a derivative under 

the second part of this definition because it is a chemical compound produced 

when the body metabolizes THC, which is a compound of similar structure. It is 

undisputed that THC and 11-carboxy-THC are identical except that in 11-carboxyTHC, two oxygen atoms are added to and three hydrogen atoms are removed from 

the eleventh carbon to make it more water soluble and easier to excrete. 

5

 <http://www.stedmans.com/section.cfm/45> (accessed March 8, 2006). 

9
 
 

Merriam-Webster’s Online Medical Dictionary defines a “derivative” as 

“something that is obtained from, grows out of, or results from an earlier or more 

fundamental state or condition,” or “a chemical substance related structurally to 

another substance and theoretically derivable from it,” or “a substance that can be 

made from another substance.”6

 The first and third parts of this definition are as 

broad as the one from Stedman’s and would include 11-carboxy-THC because it is 

produced from THC; it results from the metabolization of THC. The second of the 

three parts of this definition, however, is more limited in that it includes only “a 

chemical substance related structurally to another substance . . . .” 11-carboxyTHC also fits within this definition because, as stated above, it has an identical 

chemical structure to THC except for the eleventh carbon atom. 

Defendants agree that 11-carboxy-THC potentially qualifies as a derivative 

under the above definitions, but contend that defining the term “derivative” 

broadly under the Public Health Code would produce nonsensical results because 

it would include almost every chemical substance, including carbon dioxide, 

which is also a metabolite of THC. We agree that most of the above definitions of 

“derivative” would encompass metabolites such as carbon dioxide. Not all of the 

above definitions, however, do so. The second part of the Merriam-Webster’s 

Online Medical Dictionary describes a “derivative” as a “chemical substance 

6

 <http://www2.merriam-webster.com/cgi-bin/mwmednlm> (accessed 

March 8, 2006). 

10
 
 

related structurally to another substance and theoretically derivable from it.” This 

definition seems to include 11-carboxy-THC as a derivative of THC because it is 

related structurally to THC, but the definition is not so broad as to include other 

metabolites such as carbon dioxide. 

Given these divergent definitions, we must choose one that most closely 

effectuates the Legislature’s intent. Stanton v Battle Creek, 466 Mich 611, 618; 

697 NW2d 508 (2002).7

 In doing so, we apply the definition of the term 

7

 The dissent criticizes our choice of the definition of derivative that most 

closely effectuates the intent of the Legislature, claiming that because more than 

one definition exists, the term is ambiguous. Contrary to the dissent’s contention, 

however, a word is not ambiguous merely because different dictionary definitions 

exist. Twichel v MIC Gen Ins Corp, 469 Mich 524, 535 n 6; 676 NW2d 616 

(2004), citing Koontz v Ameritech Services, Inc, 466 Mich 304, 317-318; 645 

NW2d 34 (2002). Moreover, in Stanton, Justice Cavanagh used the very 

principles we use today to define “motor vehicle,” a term in which varying 

dictionary definitions existed. He stated: 

It is possible to find varying dictionary definitions of the term 

“motor vehicle.” For example, the Random House Webster’s College 

Dictionary (2001) defines a “motor vehicle” as “an automobile, 

truck, bus, or similar motor-driven conveyance,” a definition that 

does not include a forklift. In our view, this definition appropriately 

reflects the commonly understood meaning of the term. The 

American Heritage Dictionary (2d College ed), on the other hand, 

defines “motor vehicle” as “self-propelled, wheeled conveyance that 

does not run on rails,” a definition, which would arguably include a 

forklift. Given these divergent definitions, we must choose one that 

most closely effectuates the Legislature’s intent. Fortunately, our 

jurisprudence under the governmental tort liability act provides an 

answer regarding which definition should be selected. As previously 

noted, it is a basic principle of our state’s jurisprudence that the 

immunity conferred upon governmental agencies and subdivisions is 

to be construed broadly and that the statutory exceptions are to be 

(continued...) 

11
 
 

 

“derivative” as defined in the second part of the Merriam-Webster’s Online 

Medical Dictionary. As stated above, this definition includes 11-carboxy-THC as 

a derivative of THC because it is related structurally to THC, but is not so broad as 

to include other metabolites such as carbon dioxide. Moreover, this definition is 

consistent with the purpose of the Public Health Code to protect the health, safety, 

and welfare of the people of this state.8 

The Court of Appeals further held, and the dissent agrees, that 11-carboxyTHC was not a schedule 1 controlled substance because it has no pharmacological 

effect on the human body. Contrary to the Court of Appeals holding and the 

(...continued) 

narrowly construed. Thus, this Court must apply a narrow definition 

to the undefined term “motor vehicle.” [Stanton, supra at 617-618 

(citation omitted).] 

In choosing which definition of the term “derivative” is most appropriate 

here, we do not use our own “personal beliefs,” as suggested by the dissent. 

Rather, we use the plain language of the statute to divine the Legislature’s intent. 

8

 The dissent contends that we conclude that 11-carboxy-THC is a 

derivative of THC because both substances look similar in structure. It further 

contends that we reach our conclusion by relying on an area of science in which 

experts do not even agree instead of relying on the plain language of the statute. 

To the contrary, we conclude that 11-carboxy-THC is a derivative of THC because 

it is related structurally to THC and is derivable from THC. See MerriamWebster’s Online Medical Dictionary. We do not rely on expert testimony in 

reaching our conclusion. Rather, we rely on the plain language of the statutes in 

question. Specifically, we rely on MCL 333.7212(1)(c), which lists marijuana as a 

schedule 1 controlled substance, and MCL 333.7106(3), which defines 

"marijuana" as including derivatives of the plant. Also, contrary to the dissent’s 

suggestion, although the experts do not agree on all issues in this case, the experts 

do not dispute that 11-carboxy-THC and THC are nearly identical in structure and 

that 11-carboxy-THC is derived from the breakdown of THC. 

12
 
 

 

dissent’s contention, neither MCL 257.625(8) nor MCL 333.7212 requires that a 

substance have pharmacological properties to constitute a schedule 1 controlled 

substance. Nor does MCL 257.625(8) require that a defendant be impaired while 

driving. Rather, it punishes for the operation of a motor vehicle with any amount 

of schedule 1 controlled substance in the body.9 The Legislature expressly listed 

marijuana as a schedule 1 controlled substance. The Legislature expressly 

included the term “derivative” within the definition of "marijuana." It is not our 

place to second-guess the Legislature’s intent when the language in the statute is 

plain and unambiguous.10 Koonce, supra at 518. The Legislature undoubtedly has 

9

 The dissent relies on MCL 333.7211 in concluding that schedule 1 

controlled substances must have a pharmacological effect on the human body. It 

states: 

The administrator shall place a substance in schedule 1 if it 

finds that the substance has high potential for abuse and has no 

accepted medical use in treatment in the United States or lacks 

accepted safety for use in treatment under medical supervision. 

[MCL 333.7211.] 

This statute, however, is silent with regard to the pharmacological effects of 

a substance. Rather, it mandates the placement of a substance in schedule 1 if the 

substance has a high potential for abuse. It does not prohibit the inclusion of other 

substances in schedule 1. In any event, we note that marijuana has been expressly 

listed as a schedule 1 controlled substance. Because 11-carboxy-THC is included 

within the definition of "marijuana" as a derivative, it too constitutes a schedule 1 

controlled substance. 

10 The dissent contends that our construction of Michigan’s definition of 

“marijuana” as including 11-carboxy-THC is contrary to and inconsistent with 

years of federal law. We first note that no federal court has specifically excluded 

11-carboxy-THC from the definition of "marijuana." Moreover, the dissent itself 

points out that the federal courts that have dealt with similar issues have reached 

(continued...) 

13
 
 

the power to, and often does, criminalize activity that is not itself necessarily 

dangerous or illegal because it is closely related to activity that is dangerous or 

illegal.11 

The Court of Appeals also held that 11-carboxy-THC was not a schedule 1 

controlled substance under MCL 333.7212(1)(d) because it is a natural, rather than 

a synthetic, byproduct of THC. Regardless of whether MCL 333.7212(1)(d) 

applies to synthetic substances only, 11-carboxy-THC qualifies as a schedule 1 

controlled substance under MCL 333.7212(1)(c) and, thus, we need not apply 

subsection 1(d). 

Because 11-carboxy-THC qualifies as a derivative, and since derivatives 

are included within the definition of marijuana, which MCL 333.7212(1)(c) 

specifically lists as a schedule 1 controlled substance, we hold that 11-carboxy-

(...continued) 

their conclusions by interpreting the legislative history, rather than the plain 

language of the analogous federal statute. We are not bound by federal precedent 

in interpreting state law, Continental Motors Corp v Muskegon Twp, 365 Mich 

191, 194; 112 NW2d 429 (1961), and we decline to adopt the federal precedents 

the dissent cites when they do not comport with the actual words that our 

Legislature used to convey its meaning. 

Additionally, the Legislature has directed that the statute should not only be 

construed consistently with applicable federal law, but also “liberally construed 

for the protection of the health, safety, and welfare of the people of this state.” 

MCL 333.1111(2). The definition employed by the majority meets both directives. 

11 See, for example, MCL 257.624a, in which the Legislature has made it 

illegal for a driver or passenger of a motor vehicle to transport or possess alcoholic 

liquor in an open container, regardless of whether the persons in the car actually 

drink the alcoholic beverage. 

14
 
 

THC is a schedule 1 controlled substance under MCL 333.7212(1)(c) for the 

purpose of MCL 257.625(8). We, therefore, reverse the Court of Appeals 

judgment that held that 11-carboxy-THC is not a schedule 1 controlled substance, 

and remand both cases to the trial courts for further proceedings consistent with 

this opinion. 

IV. MCL 257.625(4), (5), and (8) DO NOT REQUIRE PROOF OF A 

DEFENDANT’S KNOWLEDGE OF HIS OR HER INTOXICATION 

In Docket No. 129269, defendant Derror was charged with violating both 

MCL 257.625(4) and (5), in addition to subsection 8. Subsections 4 and 5 provide 

for an enhanced sentence for causing death or serious impairment of a body 

function while operating a motor vehicle with any schedule 1 controlled substance 

in the body. MCL 257.625 states, in relevant part: 

(4) A person, whether licensed or not, who operates a motor 

vehicle in violation of subsection (1), (3), or (8) and by the operation 

of that motor vehicle causes the death of another person is guilty of a 

crime . . . . 

(5) A person, whether licensed or not, who operates a motor 

vehicle in violation of subsection (1), (3), or (8) and by the operation 

of that motor vehicle causes a serious impairment of a body function 

of another person is guilty of a felony . . . . 

* * * 

(8) A person, whether licensed or not, shall not operate a 

vehicle . . . if the person has in his or her body any amount of a 

controlled substance listed in schedule 1 under section 7212 of the 

public health code . . . . 

In interpreting the above provisions, the trial court held that the prosecutor 

had to prove that Derror’s intoxication was a proximate cause of the accident. The 

15
 
 

 

Court of Appeals originally affirmed this holding, relying on People v Lardie, 452 

Mich 231, 256; 551 NW2d 656 (1996), in which this Court held that MCL 

257.625(4) “requires the people to prove that a defendant, who kills someone by 

driving while intoxicated, acted knowingly in consuming an intoxicating liquor or 

a controlled substance, and acted voluntarily in deciding to drive after such 

consumption.” Id. at 256. The Lardie Court further noted that “the statute must 

have been designed to punish drivers when their drunken driving caused another’s 

death.” Id. at 257 (emphasis in original). 

We, however, subsequently overruled portions of the Lardie case in the 

companion cases of People v Schaefer and People v Large, 473 Mich 418; 703 

NW2d 774 (2005). In these companion cases we held: 

Section 625(4) plainly requires that the victim’s death be 

caused by the defendant’s operation of the vehicle, not the 

defendant’s intoxicated operation. Thus, the manner in which the 

defendant’s intoxication affected his or her operation of the vehicle 

is unrelated to the causation element of the crime. The defendant’s 

status as “intoxicated” is a separate element of the offense used to 

identify the class of persons subject to liability under § 625(4). [Id. 

at 433 (emphasis in original).] 

We further held: 

[T]he prosecution, in proving OUIL causing death, must 

establish beyond a reasonable doubt that (1) the defendant was 

operating his or her motor vehicle in violation of MCL 257.625(1), 

(3), or (8); (2) the defendant voluntarily decided to drive, knowing 

that he or she had consumed an intoxicating agent and might be 

intoxicated; and (3) the defendant’s operation of the motor vehicle 

caused the victim’s death. [Id. at 434, citing MCL 257.625(4).] 

16
 
 

 

 

 

The Court of Appeals granted reconsideration in the Derror case in light of 

our decision in Schaefer, and held that the prosecution need only prove that 

Derror’s driving, not her intoxication, was the proximate cause of the accident.12 

The Court of Appeals further held that Schaefer applied to both MCL 257.625(4) 

and (5), although Schaefer analyzed subsection 4 only.13 

We agree with the Court of Appeals application of Schaefer in this case to 

hold that the prosecution need only prove that Derror’s driving, not her 

intoxication, was the proximate cause of the accident. MCL 257.625(8) does not 

require intoxication or impairment—it simply requires that a person have “any 

amount” of a schedule 1 controlled substance in his or her body while driving. 

We further agree that Schaefer’s holding applies to subsections 4 and 5 alike. The 

Court of Appeals stated, and we agree, that no reason exists to interpret the 

identical language of MCL 257.625(5) differently from MCL 257.625(4). We take 

this opportunity, however, to modify Schaefer to the extent that its holding is 

inconsistent with the plain language of MCL 257.625(4), (5), and (8). 

MCL 257.625(4) and (5) punish for the operation of a motor vehicle 

causing death or serious impairment of a body function in violation of subsections 

1, 3, and 8. Here, Derror operated a motor vehicle causing death and serious 

impairment of body function in violation of subsection 8. Schaefer would seem to 

12 268 Mich App 82. 

13 Id. at 81. 

17
 
require the prosecution to prove that Derror voluntarily decided to drive, knowing 

that she had consumed an intoxicating agent and might be intoxicated. The plain 

language of MCL 257.625(8) does not require the prosecution to prove beyond a 

reasonable doubt that a defendant knew he or she might be intoxicated. MCL 

257.625(8) does not require intoxication, impairment, or knowledge that one 

might be intoxicated; it simply requires that the person have “any amount” of a 

schedule 1 controlled substance in his or her body when operating a motor vehicle. 

We thus clarify Schaefer and hold that, in prosecutions involving violations of 

subsection 8, the prosecution is not required to prove beyond a reasonable doubt 

that a defendant knew he or she might be intoxicated. Because subsections 1 and 

3 are not at issue in this case, we do not disturb our holding in Schaefer with 

regard to these subsections. 

V. RESPONSE TO THE DISSENT 

The dissent claims that the majority’s interpretation of MCL 257.625(8) is 

unconstitutional because it: (1) fails to provide notice about what conduct is 

prohibited, (2) is vague and provides potential for arbitrary and discriminatory 

enforcement, and (3) is not rationally related to the objective of the statute. 

First, the only constitutional issue raised by defendant in his Statement of 

Questions was that the “expansion” of the definition of “marijuana” rendered the 

statute unconstitutionally vague and overbroad. Neither party raised the first and 

third constitutional concerns posed by the dissent. That the justices inquired at oral 

argument regarding the Legislature’s power to enact the statute in question does 

18
 
not preserve these constitutional issues as the dissent suggests. In his dissent in 

Mack v Detroit, 467 Mich 186; 649 NW2d 47 (2002), Justice Cavanagh strongly 

criticized the practice of raising issues that have never been argued or properly 

briefed by the parties. He stated: 

In reaching its holding, the majority disregards the 

foundational principles of our adversarial system of adjudication. 

As protectors of justice, we refrain from deciding issues without 

giving each party a full and fair opportunity to be heard. But not for 

this concern, the judicially created doctrine of standing would be 

discarded, as it ensures “concrete adverseness which sharpens the 

presentation of issues upon which the court so largely depends for 

illumination . . . .” However, the majority has disregarded such 

considerations, misconstruing the proper scope of its authority, by 

making dispositive an issue never argued or briefed by the parties. 

Neither of the parties has had the benefit of sharing with this Court 

their thoughts on the effect of the tort immunity act on this case, 

though the implications of the majority's holding are vast. Never 

before have I witnessed such overreaching conduct from members of 

this Court. [Id. at 213 (Cavanagh, J., dissenting) (citation omitted).] 

Nevertheless, we will address these unpreserved constitutional issues. 

First, the dissent claims that our interpretation of the statute does not provide an 

ordinary person with notice of prohibited conduct. To the contrary, the plain 

language of the statute is clear and unambiguous. MCL 257.625(8) prohibits the 

operation of a motor vehicle with any amount of a schedule 1 controlled substance 

in the body. In essence, the statute prohibits a person from driving after smoking 

marijuana. It is irrelevant that an “ordinary” marijuana smoker allegedly does not 

know that 11-carboxy-THC could last in his or her body for weeks. It is also 

irrelevant that a person might not be able to drive long after any possible 

19
 
impairment from ingesting marijuana has worn off. The use of marijuana is 

classified as a misdemeanor under current law, MCL 333.7404(1) and (2)(d). The 

Legislature’s prohibition of the operation of a motor vehicle with any amount of 

marijuana, which explicitly includes derivatives of marijuana, in the body provides 

more than adequate notice regarding the prohibited conduct. The corollary of this 

prohibition is that once the schedule 1 substance is no longer in the body, one can 

resume driving. It is irrelevant that the “ordinary person” cannot determine, 

without drug testing, when the schedule 1 substance is no longer detectible in the 

body. 

The dissent next argues that our interpretation of the statute is 

unconstitutionally vague because it provides the potential for arbitrary and 

discriminatory enforcement. Specifically, it claims that our interpretation of the 

statute makes criminals of persons who have merely inhaled marijuana or people 

who are no longer under the influence of marijuana. 

As previously stated, MCL 257.625(8) does not require that a person be 

under the influence of a schedule 1 controlled substance to violate the statute. It 

merely requires that a person have any amount of a schedule 1 controlled 

substance in the person’s body. It is irrelevant that a person who is no longer 

“under the influence” of marijuana could be prosecuted under the statute. If the 

20
 
 

 

Legislature had intended to prosecute only people who were under the influence 

while driving, it could have written the statute accordingly.14 

Moreover, if the general class of offenses to which the statute is directed is 

plainly within its terms, the statute will not be struck down as vague, even though 

doubtful cases could be hypothesized. See United States v Petrillo, 332 US 1, 5-8; 

67 S Ct 1538; 91 L Ed 1877 (1947). In Petrillo, the United States Supreme Court 

stated: 

The Constitution has erected procedural safeguards to protect 

against conviction for crime except for violation of laws which have 

clearly defined conduct thereafter to be punished; but the 

Constitution does not require impossible standards. The language 

here challenged conveys sufficiently definite warning as to the 

proscribed conduct when measured by common understanding and 

practices. The Constitution requires no more. [Id. at 7-8.] 

In this case, both defendants admitted smoking marijuana just hours before 

driving. No question exists that that statute proscribes their conduct. Moreover, 

the statute sufficiently conveyed that operating a vehicle after smoking marijuana 

is illegal. Because a hypothetical case could be posed where doubts might arise 

does not render the statute unconstitutionally vague. The statute, as applied to 

these defendants, is constitutional. 

14 The Legislature has included an “under the influence” requirement in 

other sections of MCL 257.625. See subsections 1 to 3. Thus, if the Legislature 

had also intended to include the same requirement in subsection 8, it would have 

done so. 

21
 
 

Finally, the dissent contends that our plain language interpretation of the 

statute does not pass muster under the rational basis test. Initially, we agree that 

rational basis review is appropriate because the statute is social legislation15 

enacted under the state’s traditional police power to regulate public safety, public 

health, morality, and law and order.16 Further, under this highly deferential 

standard of review, the legislation must be upheld unless the challenger can show 

that it is “‘“arbitrary, and wholly unrelated in a rational way to the objective of the 

statute.”’”17 We reject the dissent’s assertion that the statute is not rationally 

related to its objective. 

The dissent claims that the statute’s objective is to prevent people from 

driving under the influence of a controlled substance. Not so. The statute’s stated 

objective is to prevent persons from driving with any amount of a schedule 1 

controlled substance in the body, whether or not the substance is still influencing 

them. This is clearly a legitimate exercise of the Legislature’s police power since 

15 See Phillips v Mirac, Inc, 470 Mich 415, 434; 685 NW2d 174 (2004). 

16 Berman v Parker, 348 US 26, 32; 75 S Ct 98; 99 L Ed 27 (1954) (“Public 

safety, public health, morality, peace and quiet, law and order—these are some of 

the more conspicuous examples of the traditional application of the police power 

to municipal affairs. Yet they merely illustrate the scope of the power and do not 

delimit it.”). 

17 Phillips, supra at 433, quoting Crego v Coleman, 463 Mich 248, 259; 

615 NW2d 218 (2000), quoting Smith v Employment Security Comm, 410 Mich 

231, 271; 301 NW2d 285 (1981); see also Harvey v Michigan, 469 Mich 1, 7; 644 

NW2d 767 (2003). 

22
 
 

 

11-carboxy-THC is indisputably only present in the body after someone has 

ingested marijuana, i.e., done something illegal. 

Nevertheless, assuming that the statute’s objective is to prevent persons 

from driving under the influence of marijuana, the statute passes constitutional 

muster. While the dissent seemingly concedes that preventing people from driving 

under the influence of marijuana is a legitimate government objective, it asserts 

that, under our interpretation, the statute is not rationally related to that objective 

because 11-carboxy-THC has no pharmacological effect and, therefore, cannot 

influence the person’s driving. That the statute might apply to some persons who 

are not actually under “the influence” of marijuana does not render the statute 

unconstitutional. Rather, under the rational basis standard of review, our only 

inquiry is whether any conceivable set of facts, either known or that can 

reasonably be assumed, even if they are debatable, might support the Legislature’s 

judgment that making it a crime for persons to drive with any amount of 11-

carboxy-THC in the body will prevent them from driving under the influence of a 

controlled substance.18 

Such a conceivable set of facts certainly exists in this case. It is undisputed 

that the presence of 11-carboxy-THC conclusively proves that a person, at some 

point, ingested THC, which is an ingredient in marijuana and which does have a 

18 Muskegon Area Rental Ass’n v Muskegon, 465 Mich 456, 464; 636 

NW2d 751 (2001); Harvey, supra at 7. 

23
 
 

pharmacological effect on the body. It is also undisputed that THC itself begins to 

break down and leave the bloodstream shortly after entering the body, but that its 

effects can last long after it is no longer detectible in the blood. It is thus 

conceivable that the Legislature enacted this statute to further the objective of 

preventing persons from driving under the influence of marijuana by enabling the 

prosecution of persons who might be under the influence of THC, but for whom 

only traces of 11-carboxy-THC, and not THC itself, are still present in the body. 

Moreover, under the rational basis test, we do not consider the wisdom of 

the Legislature’s choice, or whether that choice was made with mathematical 

nicety, or whether it is most narrowly drawn to obtain its objective, or whether it 

may be inequitable when put into practice.19 In short, we do not consider the 

effects of the statute or its consequences, only its purpose.20 As long as the 

Legislature’s objective is legitimate, the means that it chooses to obtain that 

objective is not rendered unconstitutional merely because it may be overinclusive. 

In New York Transit Auth v Beazer, 440 US 568; 99 S Ct 1355; 59 L Ed 2d 

587 (1979), the United States Supreme Court upheld a statute applying the rational 

basis standard. The Beazer case involved a challenge to the New York Transit 

Authority’s refusal to employ persons who used methadone, a drug used to cure 

19 Phillips, supra at 434; Muskegon Area Rental, supra at 464; Harvey, 

supra at 7. 

20 Phillips, supra at 435, quoting Duke Power Co v Carolina Environmental 

Study Group, 438 US 59, 83-84; 98 S Ct 2620; 57 L Ed 2d 595 (1978). 

24
 
 

 

 

heroin addiction, under a general safety-oriented policy against employing persons 

who use narcotic drugs. Id. at 570-573. The plaintiffs, participants in stateregulated methadone treatment programs who had been denied employment with 

the transit authority, challenged the blanket exclusion as overinclusive. 

Specifically, they asserted that the exclusion, at least as applied to them, did not 

further the policy’s goal of safety because methadone administered in such 

treatment programs does not produce euphoria, is an effective cure for heroin 

addiction, and frees the majority of persons involved in such programs from illicit 

drug use. Id. at 573-577. 

The Court rejected the plaintiffs’ challenge. After concluding that the 

transit authority’s blanket exclusion was probably broader than necessary to 

achieve its goal of ensuring safety, id. at 592, the Court stated that “it is of no 

constitutional significance that the degree of rationality is not as great with respect 

to certain ill-defined subparts of the classification as it is with respect to the 

classification as a whole.” Id. at 593. The same is true here. The goal of the 

legislation is legitimate. That the Legislature could have conceivably enacted a 

more perfectly precise statute does not render the current statute constitutionally 

invalid.21 

21 Contrary to the dissent’s contention, we are not “ignor[ing] [our] 

mandate to reasonably construe a statute to ensure that it is constitutional . . . .” 

Post at 16 n 5. Our construction of the statute, which is consistent with the plain 

(continued...) 

25
 
 

VI. CONCLUSION 

We hold that 11-carboxy-THC is a schedule 1 controlled substance under 

MCL 333.7212(1)(c) of the Public Health Code for the purpose of construing 

MCL 257.625(8) of the Michigan Vehicle Code. Accordingly, we reverse the 

judgment of the Court of Appeals regarding this issue, and remand both cases to 

the trial courts for further proceedings consistent with this opinion. We do not 

retain jurisdiction. 

We reaffirm our holding in Schaefer that the prosecution need only prove 

that a defendant’s driving, not his or her intoxication, was a proximate cause of the 

accident. Further, Schaefer’s holding applies to both MCL 257.625(4) and (5). 

Accordingly, we affirm the judgment of the Court of Appeals regarding this issue 

in Docket No. 129269. 

We also modify Schaefer to hold that, in a prosecution involving MCL 

257.625(8), the prosecutor need not prove beyond a reasonable doubt that the 

defendant knew he or she might be intoxicated. 

 Maura D. Corrigan 

Clifford W. Taylor 

Robert P. Young, Jr. 

Stephen J. Markman 

(...continued) 

language of the statute, does not render the statute unconstitutional. Thus, we
 

need not construe the statute differently. 

26
 
_______________________________ 

_______________________________ 

S T A T E O F M I C H I G A N 

SUPREME COURT 

PEOPLE OF THE STATE OF MICHIGAN,

 Plaintiff-Appellant, 

v No. 129269 

DELORES MARIE DERROR, 

Defendant-Appellee. 

PEOPLE OF THE STATE OF MICHIGAN,

 Plaintiff-Appellant, 

v No. 129364 

DENNIS WAYNE KURTS, 

Defendant-Appellee. 

CAVANAGH, J. (dissenting). 

Today, the majority holds that 11-carboxy-tetrahydrocannabinol (11-

carboxy-THC) is a schedule 1 controlled substance and that a person violates the 

law if he drives with any amount of 11-carboxy-THC in his body. The full import 

of this decision can only be understood by recognizing that the majority’s 

interpretation means that a person can no longer legally drive a car if scientific 
testing can detect any amount of 11-carboxy-THC in his system. This means that 

weeks, months, and even years after marijuana was ingested, and long after any 

risk of impairment has passed, a person cannot drive a car without breaking the 

law if a test can detect the presence of 11-carboxy-THC. Because I believe that 

this interpretation disregards the statutory language chosen by the Legislature and 

results in an interpretation that violates the United States Constitution and the 

Michigan Constitution, I respectfully dissent. 

11-CARBOXY-THC IS NOT A SCHEDULE 1 CONTROLLED SUBSTANCE 

BECAUSE IT IS NOT A DERIVATIVE OF MARIJUANA 

This case involves an issue of statutory interpretation, and the primary goal 

of statutory interpretation is to give effect to the intent of the Legislature. The first 

step is to review the language of the statute. If the statutory language is 

unambiguous, the Legislature is presumed to have intended the meaning expressed 

in the statute, and judicial construction is not permissible. In re MCI Telecom 

Complaint, 460 Mich 396, 411; 596 NW2d 164 (1999). However, when a statute 

is ambiguous, “so that reasonable minds could differ with respect to its meaning, 

judicial construction is appropriate to determine the meaning.” Id. 

MCL 257.625(8) states in relevant part: 

A person, whether licensed or not, shall not operate a vehicle 

upon a highway or other place open to the general public or 

generally accessible to motor vehicles, including an area designated 

for the parking of vehicles, within this state if the person has in his 

or her body any amount of a controlled substance listed in schedule 

1 under section 7212 of the public health code, 1978 PA 368, MCL 

333.7212, or a rule promulgated under that section . . . . [Emphasis 

added.] 

2
 
Marijuana itself is a schedule 1 controlled substance. MCL 333.7212(1)(c). 

“Marijuana” is defined as follows: 

“Marihuana” means all parts of the plant Canabis [sic] sativa 

L., growing or not; the seeds thereof; the resin extracted from any 

part of the plant; and every compound, manufacture, salt, derivative, 

mixture, or preparation of the plant or its seeds or resin. It does not 

include the mature stalks of the plant, fiber produced from the stalks, 

oil or cake made from the seeds of the plant, any other compound 

manufacture, salt, derivative, mixture, or preparation of the mature 

stalks, except the resin extracted therefrom, fiber, oil or cake, or the 

sterilized seed of the plant which is incapable of germination. [MCL 

333.7106(3).] 

Further, MCL 333.7212(1)(d) states that the following are also schedule 1 

controlled substances: 

Except as provided in subsection (2), synthetic equivalents of 

the substances contained in the plant, or in the resinous extractives 

of cannabis and synthetic substances, derivatives, and their isomers 

with similar chemical structure or pharmacological activity, or both, 

such as the following, are included in schedule 1: 

(i) ∆1

 cis or trans tetrahydrocannabinol, and their optical 

isomers. 

(ii) ∆6

 cis or trans tetrahydrocannabinol, and their optical 

isomers. 

(iii) ∆3,4 cis or trans tetrahydrocannabinol, and their optical 

isomers. 

Notably, when construing MCL 333.7212 as part of the Public Health 

Code, the provisions are “intended to be consistent with applicable federal and 

state law and shall be construed, when necessary, to achieve that consistency.” 

MCL 333.1111(1). Michigan’s definition of “marijuana” is identical in all 

3
 
 

relevant portions to the federal definition. See 21 USC 802(16).1 Yet no federal 

court has held that 11-carboxy-THC is a schedule 1 controlled substance. As the 

Seventh Circuit Court of Appeals stated, “The legislative history of the 

[Controlled Substances] Act indicates that the purpose of banning marijuana was 

to ban the euphoric effects produced by THC.” United States v Sanapaw, 366 F3d 

492, 495 (CA 7, 2004). Significantly, as every expert who testified in these cases 

acknowledges, 11-carboxy-THC has no pharmacological effects on a person. 

Further, the District of Columbia Court of Appeals held that “the definition 

of marijuana was intended to include those parts of marijuana which contain THC 

and to exclude those parts which do not.” United States v Walton, 168 US App 

DC 305, 307; 514 F2d 201 (1975). Numerous courts have also long held that the 

statute is intended to outlaw all species of marijuana containing 

tetrahydrocannabinol. See, e.g., United States v Lupo, 652 F2d 723, 728 (CA 7, 

1981) (emphasis added). Therefore, construing Michigan’s definition of 

1

 The federal statute states: 

The term “marihuana” means all parts of the plant Cannabis 

sativa L., whether growing or not; the seeds thereof; the resin 

extracted from any part of such plant; and every compound, 

manufacture, salt, derivative, mixture, or preparation of such plant, 

its seeds or resin. Such term does not include the mature stalks of 

such plant, fiber produced from such stalks, oil or cake made from 

the seeds of such plant, any other compound, manufacture, salt, 

derivative, mixture, or preparation of such mature stalks (except the 

resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of 

such plant which is incapable of germination. [21 USC 802(16).] 

4
 
 

“marijuana” to include 11-carboxy-THC is contrary to and inconsistent with years 

of federal law. 

While the majority subtly criticizes the federal courts for using legislative 

history to reach their conclusions, as opposed to the “plain language” of the 

statute, the majority itself is guilty of ignoring the plain language of MCL 

333.1111(1) to reach its conclusion. In MCL 333.1111(1), the Legislature states 

that provisions of the Public Health Code are intended to be construed consistently 

with applicable federal law. The Legislature did not state that the clear mandate to 

construe provisions consistently with federal law can be ignored when the 

majority believes that the federal courts have not properly decided the cases before 

them. Further, the majority’s seemingly minor critique of the use of legislative 

history is actually quite remarkable when one considers that the statutory language 

at issue in this case—as well as the language in the federal statute—is certainly not 

plain and unambiguous, no matter how much the majority tries to convince a 

reader that it is. This is best illustrated by reviewing the majority’s approach to 

interpreting this “plain” language. 

To decide this case, the majority recognizes that the term “derivative” 

needs to be defined, so it consulted scientific dictionaries to do so. The majority 

found that there were “divergent” definitions of “derivative” to such a degree that 

the members of the majority had to choose the one they believed would best 

effectuate the Legislature’s intent, using nothing to guide them except their 

5
 
 

beliefs.2 Notably, the majority even states that it decided not to follow “most” 

definitions. Instead, the majority chooses to ignore most definitions because these 

definitions would not support the majority’s outcome, and the majority ultimately 

settles on the one definition that would allow it to best support its position. 

Simply, contrary to the majority’s bold assertions, there is nothing plain or 

unambiguous about a statute that uses a term with definitions that are so diverse 

that they can support two totally different outcomes. In fact, this is the very 

meaning of the term “ambiguous.” A statute is ambiguous when “reasonable 

minds could differ with respect to its meaning . . . .” In re MCI, supra at 411; see 

also Perez v Keeler Brass Co, 461 Mich 602, 610; 608 NW2d 45 (2000) (In a 

unanimous opinion from this Court, the term “refuses” was deemed ambiguous 

because it could reasonably be construed narrowly or broadly, resulting in two 

different meanings and two different outcomes.). And in cases in which statutory 

language is ambiguous, such as the case before us, and the cases involving similar 

language before the federal courts, use of legislative history to try and best 

effectuate the intent of the Legislature when interpreting unclear and ambiguous 

statutory language is a better method than an analysis that attempts to divine the 

2

 The majority consulted medical dictionaries. A further review of various 

chemical dictionaries indicates exactly what the majority has stated—there are 

widely divergent definitions of “derivative” and “metabolite,” such that a 

definition alone cannot resolve this issue. See, e.g., Grant & Hackh’s Chemical 

Dictionary (5th ed); Glossary of Chemical Terms (2d ed); Hawley’s Condensed 

Chemical Dictionary (12th ed). 

6
 
 

Legislature’s intent using nothing more than the personal beliefs of those in the 

majority.3 

Moreover, not only does the majority ignore federal law in its analysis, it 

also ignores other relevant statutory provisions. To support its outcome, the 

majority merely cites various sources for the definition of “derivative” and notes 

that these sources offer divergent definitions. However, the majority resolves this 

ambiguity by ultimately selecting a definition that describes a derivative as a 

“‘chemical substance related structurally to another substance and theoretically 

derivable from it.’” Ante at 10, quoting Merriam-Webster’s Online Medical 

Dictionary. The majority does this because it believes that this definition most 

closely effectuates the intent of the Legislature. 

But the majority ignores other statutory provisions that indicate that 11-

carboxy-THC is not a schedule 1 controlled substance. Contrary to the majority’s 

3

 I note that the majority attempts to create an inconsistency in my position 

when none actually exists. Ante at 11 n 7. The majority references a prior case 

that I wrote—Stanton v Battle Creek, 466 Mich 611; 647 NW2d 508 (2002)—and 

states that I used the same principles that I criticize the majority for using in this 

case. However, the majority should read my opinion in Stanton more closely. In 

Stanton, I recognized that there were divergent definitions of the term “motor 

vehicle” and that one should be selected that most closely effectuates the 

Legislature’s intent. I further stated, “Fortunately, our jurisprudence under the 

governmental tort liability act provides an answer regarding which definition 

should be selected.” Id. at 618 (emphasis added). In direct contrast to my analysis 

in Stanton, the majority has not used jurisprudence to guide its decision; instead, 

those in the majority have solely used their personal beliefs about what the 

outcome of this case should be to guide their decision. As such, the majority has 

ignored the rules of statutory construction in its effort to arrive at its desired result. 

7
 
 

position, MCL 333.7212 does not plainly and unambiguously classify 11-carboxyTHC as a schedule 1 controlled substance. 11-carboxy-THC is not listed 

anywhere in the statute. The majority rests its entire argument on the use of the 

word “derivative” in the statute, but this analysis is flawed because the majority 

reaches a result that dismissively ignores the fact that 11-carboxy-THC has no 

pharmacological effect on a person. While MCL 333.7211 does not explicitly 

require that a substance have a pharmacological effect to constitute a schedule 1 

controlled substance, the statute does explicitly state that a substance is classified 

as a schedule 1 controlled substance if it has a high potential for abuse, which 

naturally requires a pharmacological effect. 

Our Legislature has stated that a substance is placed “in schedule 1 if [the 

administrator] finds that the substance has high potential for abuse and has no 

accepted medical use in treatment in the United States or lacks accepted safety for 

use in treatment under medical supervision.” MCL 333.7211 (emphasis added). 

But there is no dispute that 11-carboxy-THC has no pharmacological effect. All 

the experts—including experts Dr. Michelle Glinn, who is the supervisor of the 

toxicology laboratory of the Michigan State Police Crime Lab, and Dr. Felix 

Adatsi, both called to testify by the prosecution—admit that 11-carboxy-THC has 

no pharmacological effect on a person whatsoever. 

Other factors listed by the Legislature to consider in making a 

determination about the classification of a substance are: 

(a) The actual or relative potential for abuse. 

8
 
(b) The scientific evidence of its pharmacological effect, if 

known. 

(c) The state of current scientific knowledge regarding the 

substance. 

(d) The history and current pattern of abuse. 

(e) The scope, duration, and significance of abuse. 

(f) The risk to the public health. 

(g) The potential of the substance to produce psychic or 

physiological dependence liability. 

(h) Whether the substance is an immediate precursor of a 

substance already controlled under this article. [MCL 333.7202.] 

None of these factors that are used to determine if a substance should be 

classified as a schedule 1 controlled substance applies to 11-carboxy-THC. 11-

carboxy-THC has no pharmacological effect on a person, and, therefore, it has no 

potential for abuse or potential to produce dependence. Further, as expert witness 

Dr. Michael Evans testified, it is impossible to take 11-carboxy-THC and make it 

into THC; therefore, it is not an immediate precursor of a substance already 

classified as a schedule 1 controlled substance. 

Our Legislature selected these factors and the words “high potential for 

abuse” for a reason—they cannot be ignored by the majority merely because they 

cannot be reconciled with the majority’s rationale. “It is a well-established rule of 

statutory construction that provisions of a statute must be construed in light of the 

other provisions of the statute to carry out the apparent purpose of the 

Legislature.” Farrington v Total Petroleum, Inc, 442 Mich 201, 209; 501 NW2d 

9
 
76 (1993). “To that end, the entire act must be read, and the interpretation to be 

given to a particular word in one section arrived at after due consideration of every 

other section so as to produce, if possible, a harmonious and consistent enactment 

as a whole.” City of Grand Rapids v Crocker, 219 Mich 178, 182-183; 189 NW 

221 (1922). The majority’s analysis ignores the very reasons that a substance is 

classified as a schedule 1 controlled substance, and it reaches a result that 

completely disregards other relevant provisions of the statute. 

Further, the majority makes pronouncements such as 11-carboxy-THC is a 

derivative “because it is a chemical compound produced when the body 

metabolizes THC, which is a compound of similar structure.” Ante at 9. The 

majority then states that “THC and 11-carboxy-THC are identical except that in 

11-carboxy-THC, two oxygen atoms are added to and three hydrogen atoms are 

removed from the eleventh carbon atom to make it more water soluble and easier 

to excrete.” Ante at 9. But merely because a compound looks similar in its basic 

chemical formula does not mean that it is a compound of similar structure for the 

purposes of controlled substance classification methods. Water and hydrogen 

peroxide look similar—H2O and H2O2—but they are, of course, very different 

substances. One is a substance you must drink to survive; the other will kill you if 

you drink it. Instead of trying to delve into areas of science in which the experts 

do not even agree, the majority should simply refer to the statutory language and 

the fact that when considering the factors selected by the Legislature, there is no 

rationale to classify 11-carboxy-THC as a schedule 1 controlled substance. 

10
 
Incredibly, the majority attempts to present the expert testimony as being in 

agreement. See ante at 12 n 8. Yet this inaccurate representation is not supported 

when one actually reads and considers the full testimony of the experts. The 

experts are not in agreement about whether 11-carboxy-THC is a derivative of 

marijuana and, therefore, a schedule 1 controlled substance. While the experts 

may be in agreement over some scientific principles, they disagree over the key 

issue in this case, and it is misleading to present this in any other manner. 

Notably, Dr. Daniel McCoy and Dr. Evans both testified that 11-carboxy-THC 

was a metabolite, but it was not a derivative and, therefore, 11-carboxy-THC was 

not a schedule 1 controlled substance. As Dr. McCoy explained, under the 

interpretation adopted by the majority “everything is a derivative, every chemical 

on earth can be derived from something else.” He further explained that, using the 

majority’s interpretation, if THC is burned, “we will develop a lot of chemicals, 

including carbon dioxide, to the extent a derivative is something that comes from 

and has similar chemical structure to some part, carbon dioxide would be 

scheduled material . . . . .” Dr. Evans testified, “It [11-carboxy-THC] is not a 

derivative. . . . To call carboxy THC a derivative of THC would be like—carbon 

dioxide is a metabolite of THC. You’ll get that when you exhale or take in a 

breath. . . . If you were to call carboxy THC a derivative, you would have to call 

carbon dioxide a derivative of THC . . . .” In short, Dr. McCoy and Dr. Evans 

disagreed with the majority’s interpretation because the rationale that would 

support classifying 11-carboxy-THC as a derivative would also apply to carbon 

11
 
dioxide; therefore, a person could be guilty of violating MCL 257.625(8) with 

carbon dioxide in his system—a result that even the majority finds to be 

insupportable. Further, the majority even highlights the scientific disagreement 

when it refers to the divergent definitions for “derivative” and states “that most of 

the above definitions of ‘derivative’ would encompass metabolites such as carbon 

dioxide. Not all of the above definitions, however, do so.” Ante at 10. Thus, it is 

false to suggest that this case is one in which the experts agree that 11-carboxyTHC is a derivative of marijuana and, therefore, a schedule 1 controlled substance. 

As it pertains to MCL 333.7212(1)(d), the Court of Appeals properly held 

that the statute was enacted to deal with substances that were produced 

synthetically. The statute refers to “synthetic equivalents” and “synthetic 

substances, derivatives, and their isomers with similar chemical structure or 

pharmacological activity . . . .” MCL 333.7212(1)(d). Synthetic substances are 

substances that were altered, sometimes in minor ways, but that can still have 

pharmacological effects on a person. However, 11-carboxy-THC is a metabolite; 

it is a natural substance that occurs when a person’s body breaks down THC, and 

it is not a synthetic substance. Therefore, 11-carboxy-THC is also not classified as 

a schedule 1 controlled substance by MCL 333.7212(1)(d). Moreover, in Hemp 

Industries Ass’n v Drug Enforcement Admin, 333 F3d 1082, 1089 (CA 9, 2003), 

the Ninth Circuit Court of Appeals interpreted a regulation with language similar 

to that used in MCL 333.7212(1)(d) and held that this regulation was enacted 

because THC was being produced synthetically and should be controlled. 

12
 
Likewise, the comparable statute at issue addresses substances produced 

synthetically and not those produced naturally through metabolism. 

Finally, the Legislature knows how to use the term “metabolite” when it 

wants to. In MCL 722.623a, the Legislature specifically uses the term 

“metabolite” in discussing child abuse reporting requirements. The statute 

specifically refers to “a metabolite of a controlled substance.” The Legislature is 

presumed to be aware of all existing statutes when it enacts another. Walen v 

Dep’t of Corrections, 443 Mich 240, 248; 505 NW2d 519 (1993). The fact that 

the Legislature specifically chose not to include the word “metabolite” is further 

indication that 11-carboxy-THC should not be classified as a schedule 1 controlled 

substance under the language selected by the Legislature. 

Thus, the majority’s interpretation that 11-carboxy-THC is a schedule 1 

controlled substance is flawed for numerous reasons. Namely, the interpretation 

ignores federal case law, the statutory language chosen by our Legislature, and 

other relevant statutory provisions, as well as the basic tenets of statutory 

construction. Notably, the majority’s unsupportable theory results in an 

interpretation that is not just analytically flawed but is also unconstitutional. 

THE ISSUE WHETHER THE MAJORITY’S INTERPRETATION OF THE 

STATUTE IS UNCONSTITUTIONAL IS PROPERLY PRESERVED 

The issue whether the majority’s interpretation of the statute is 

unconstitutional has been properly raised and preserved. Contrary to the 

majority’s assertion that the constitutional issue has not been properly preserved, 

13
 
defendant Derror did sufficiently raise this issue. Defendant Derror’s first 

question presented states, “IS CARBOXY THC, A METABOLITE OF 

MARIJUANA WITH NO PHARMACOLOGIC EFFECTS, A SCHEDULE 1 

CONTROLLED SUBSTANCE?” One of the reasons that defendant Derror 

argues 11-carboxy-THC is not a schedule 1 controlled substance is that such an 

interpretation would be unconstitutional. This is explicitly expressed in one of the 

subheadings addressing this issue, which states, “The Definition Of Marijuana In 

MCL 333.7106 Does Not Include Carboxy THC. The Unprecedented Expansion 

Of This Definition, Originally Adopted By The U.S. Congress In 1937, Is 

Contrary To The Plain Language Of The Statute, Legislative Intent, And Renders 

The Statute Constitutionally Vague And Overbroad.” 

Further, defendant Derror’s second question presented states, “CAN MCL 

257.625(4), (5) AND (8) BE INTERPRETED TO CREATE STRICT LIABILITY 

CRIMES WITHOUT VIOLATING DEFENDANTS’ CONSTITUTIONAL 

RIGHT TO DUE PROCESS?” In addressing this issue, defendant Derror further 

explains why classifying 11-carboxy-THC as a schedule 1 controlled substance 

would violate a person’s due process rights. Notably, the prosecutor in Derror 

responded to these arguments in his brief, specifically arguing that Michigan’s 

statute is constitutional because there is a legitimate state interest in proscribing 

the use of any amount of certain controlled substances. Not only was this issue 

briefed, but Chief Justice Taylor specifically questioned the parties about the 

constitutionality of the statute during oral argument, as did Justice Young and 

14
 
 

Justice Markman. Accordingly, the majority’s contention that I have strongly 

criticized the practice of raising issues that have never been argued or briefed by 

the parties is an accurate statement, but it is wholly inapplicable to this case. The 

parties not only had the opportunity to address the constitutional issue in this case, 

but they indeed did so. The majority misrepresents the record in this case and 

quotes from a prior opinion that I wrote to try and conjure up an inconsistency in 

my position when indeed no such inconsistency exists. The issue of 

constitutionality has been properly raised and preserved, and, as such, I find the 

majority’s interpretation of the statute to be unconstitutional. 

THE MAJORITY’S INTERPRETATION OF THE STATUTE IS 

UNCONSTITUTIONAL 

It is indisputable that due process requires that citizens “be apprised of 

conduct which a criminal statute prohibits.” People v Turmon, 417 Mich 638, 

655; 340 NW2d 620 (1983).4

 “The constitutional requirement of definiteness is 

violated by a criminal statute that fails to give a person of ordinary intelligence fair 

notice that his contemplated conduct is forbidden by the statute.” United States v 

4

 The Fifth Amendment of the United States Constitution provides in 

relevant part: 

No person shall . . . be deprived of life, liberty, or property, 

without due process of law . . . . [US Const, Am V.] 

The Michigan Constitution provides in relevant part: 

No person shall be . . . deprived of life, liberty or property, 

without due process of law. [Const 1963, art 1, § 17.] 

15
 
 

Harriss, 347 US 612, 617; 74 S Ct 808; 98 L Ed 989 (1954). No person “shall be 

held criminally responsible for conduct which he could not reasonably understand 

to be proscribed.” Id. For a criminal statute to be constitutional, it “must define 

the criminal offense ‘with sufficient definiteness that ordinary people can 

understand what conduct is prohibited and in a manner that does not encourage 

arbitrary and discriminatory enforcement.’” People v Lino, 447 Mich 567, 575; 

527 NW2d 434 (1994), quoting Kolender v Lawson, 461 US 352, 357; 103 S Ct 

1855; 75 L Ed 2d 903 (1983). Moreover, if the general class of offenses affected 

by a statute “can be made constitutionally definite by a reasonable construction of 

the statute, [a court] is under a duty to give the statute that construction.” Harriss, 

supra at 618.5 

The majority’s interpretation of the statute is unconstitutional for three 

reasons. First, the majority’s interpretation of the statute does not provide an 

ordinary person with notice about what conduct is prohibited. MCL 257.625(8) 

prohibits driving with any amount of a schedule 1 controlled substance in a 

person’s body. However, the majority interprets the statute in such a way as to 

provide no guidance to an ordinary person about when he can legally drive given 

the scientific testimony that 11-carboxy-THC can easily be found in a person’s 

5

 I note that the majority does not refer to this rule of law, instead only 

stating that a statute will not be struck down as vague even though doubtful cases 

can be imagined. See ante at 21. The majority’s choice to ignore its mandate to 

reasonably construe a statute to ensure that it is constitutional is central for it to 

reach its decision today. 

16
 
 

system for weeks after marijuana was ingested. This means that long after any 

possible impairment from ingesting marijuana has worn off, a person still cannot 

drive according to the majority’s version of the statute. It also means that whether 

a person is deemed to have any amount of 11-carboxy-THC in his system depends 

on whatever cutoff standard for detection is set by the laboratory doing the 

testing.6

 This lacks any sort of guidance to give a person fair notice of when he 

can legally drive a car. Further, as explained by Dr. McCoy, as tests become more 

sophisticated, scientists will ultimately be able to determine if a person ever 

actively or passively ingested marijuana. Under the majority’s theory, no one 

could legally drive a car if he ever inhaled marijuana. The majority states that it is 

“irrelevant” that a person cannot legally drive until long after any possible 

impairment from ingesting marijuana has worn off, even if this is weeks, months, 

or years. Further, the majority deems it “irrelevant” that a person cannot 

determine without clinical drug testing when 11-carboxy-THC can no longer be 

detected in a person’s system. The majority believes all this is constitutional, and 

a person is on notice that driving may be indefinitely prohibited because ingesting 

marijuana is a misdemeanor. MCL 333.7404. But the penalty for ingesting 

marijuana under MCL 333.7404(2)(d) is “imprisonment for not more than 90 days 

or a fine of not more than $100.00, or both.” The penalty for violating this 

6

 For example, cutoff standards have been reported at 100, 50, 20, and 5 

nanograms. Huestis, Cannabis (marijuana) – Effects on human behavior and 

performance, 14 Forensic Sci Rev 15, 26-27 (2002). 

17
 
 

 

misdemeanor statute is not being prohibited from possibly ever driving a car 

again. Thus, there is nothing in MCL 333.7404 that serves to put a person on 

notice that ingesting marijuana may very well mean that he cannot drive 

indefinitely or even permanently. 

The majority’s interpretation now criminalizes a broad range of conduct 

and makes criminals out of people who have no knowledge of the conduct that 

they must now seek to avoid. The majority’s interpretation even makes criminals 

out of people who have inhaled marijuana smoke merely through passive 

inhalation. Dr. Evans, who testified in a hearing regarding defendant Kurts and 

who has worked with numerous agencies, including the United States Drug 

Enforcement Administration, stated, “You can get up to levels of five, eight, or ten 

nannograms [sic] per mil of carboxy THC in the blood by passive inhalation.”7 

The prosecutor’s expert in the Derror case, Dr. Glinn, admitted that Dr. Marilyn 

Huestis is one of the top experts on cannabis and its metabolites in the area of 

toxicology and chemistry. In an article written by Dr. Huestis, she states: 

“Environmental exposure to cannabis smoke can occur through passive inhalation 

of side-stream and exhaled smoke by non-users. Several research studies have 

indicated that it is possible to produce detectable concentrations of cannabinoid 

7

 The prosecutor in the Kurts case argued to the contrary at oral argument 

and cited an article that he stated supported his position. While this article was 

never admitted into the record, a review of the article indicates that it does not 

stand for the blanket proposition that the prosecutor argued. 

18
 
metabolites in the urine and plasma after passive inhalation of cannabis smoke.” 

Huestis, Cannabis (marijuana) – Effects on human behavior and performance, 14 

Forensic Sci Rev 15, 32 (2002). 

There is scientific evidence that 11-carboxy-THC can indeed get into a 

person’s body through passive inhalation. This is contrary to the majority’s 

assertion that 11-carboxy-THC is only present in a person’s body after they have 

“done something illegal.” Ante at 23. Scientific evidence of 11-carboxy-THC 

being present after passive inhalation means that a person who attends a concert or 

a gathering where someone is smoking marijuana and passively inhales this smoke 

will have 11-carboxy-THC in his body. With no standard in place to use as a 

cutoff, it does not matter what level of 11-carboxy-THC this inhalation results in 

because, under the majority’s interpretation of the statute, it is now illegal for that 

person and any person who has ever ingested marijuana to drive if 11-carboxyTHC can be detected. As the trial court in the Derror case correctly noted, under 

the majority’s theory, “as long as we can identify [11-]carboxy-THC in [a 

person’s] system, apparently they can’t be on the highway and, as science 

progresses, that could be for years.” 

While such an argument may at first seem far-fetched, it is the logical result 

of the majority’s interpretation of the statute. The majority’s interpretation is only 

limited by the scientific testing used in a particular case. If a test can detect 11-

carboxy-THC from marijuana that was ingested one year ago, ten years ago, or 20 

years ago, it is now a crime to drive, according to the majority. 

19
 
Because of the tremendous potential for arbitrary and discriminatory 

enforcement in charging Michigan citizens with a crime under the majority’s 

interpretation, the statute is unconstitutional for this second reason as well. The 

United States Supreme Court has recognized that a critical aspect of the vagueness 

doctrine is “‘the requirement that a legislature establish minimal guidelines to 

govern law enforcement.’” Kolender, supra at 358, quoting Smith v Goguen, 415 

US 566, 574; 94 S Ct 1242 ; 39 L Ed 2d 605 (1974). Otherwise, a criminal statute 

would permit enforcement on the basis of the whims of police officers and 

prosecutors. 

The majority’s belief that it is a crime to operate a vehicle with any amount 

of 11-carboxy-THC in a person’s body means that a prosecutor can choose to 

charge a person found to have 0.01 nanograms of 11-carboxy-THC in his system if 

the prosecutor chooses. In the Kurts case, the trial court also discussed the 

possibility that a person could be charged weeks after ingesting marijuana, stating 

that “maybe you can test positive [for 11-carboxy-THC] three weeks later, but 

there isn’t any evidence that you could be under the influence of it.” The 

prosecutor responded that it was a question for the jury, but, “hopefully, our office 

wouldn’t even charge such a case.” But the reality is that under the majority’s 

interpretation of the statute, a prosecutor could charge in that case and many others 

20
 
 

 

 

because of the majority’s improper interpretation of the statute, leaving Michigan 

citizens unsure of what conduct will be deemed criminal.8 

Third, and finally, the majority’s interpretation of the statute is 

unconstitutional because it is not rationally related to the objective of the statute. 

See Harvey v Michigan, 469 Mich 1, 7; 664 NW2d 767 (2003). For a statute to be 

deemed unconstitutional under rational-basis review, it must be shown that the 

legislation is “arbitrary and wholly unrelated in a rational way to the objective of 

the statute.” Smith v Employment Security Comm, 410 Mich 231, 271; 301 NW2d 

285 (1981). 

Simply put, the statute at issue seeks to prevent a person from operating a 

vehicle while under the influence of drugs. But 11-carboxy-THC has no 

pharmacological effect on a person, and therefore cannot affect a person’s driving. 

While 11-carboxy-THC does indicate that a person had THC in his system at some 

point in the past, there is no indication of when the THC was in the person’s 

system. Dr. Glinn admitted that the levels of 11-carboxy-THC do not indicate 

whether the effects of the parent drug—marijuana—are still present. She stated, 

8

 Unlike the prosecutor in the Kurts case, the prosecutor in the Derror case 

noted that a charge was a very real possibility, as indicated by the following 

exchange during a hearing. The trial court stated to the prosecutor, “[I]t seems 

like what you are saying now is that it’s your position that we could assume 

hypothetically that the consumption of this marijuana had absolutely no effect, 

whatsoever, on this lady’s driving, but the penalty should still be enhanced from 

two to 15 years.” The prosecutor replied, “That is the position of the People, Your 

Honor . . . .” 

21
 
“You can’t correlate the levels with the effects very well.” Further, no expert 

testified that a person who had ingested marijuana days and weeks ago would still 

be impaired. To the contrary, Dr. Glinn testified that the effects may be seen “up 

to 24 hours . . . .” The scientific evidence is irrefutable that 11-carboxy-THC stays 

in a person’s system far past the point of any impairment. There is simply no 

rational reason to charge a person with 11-carboxy-THC in his system weeks after 

marijuana was originally ingested when a person can no longer be impaired from 

the effects of the marijuana. 

Plainly, there is no rational reason to charge a person who passively inhaled 

marijuana smoke at a rock concert a month ago and who now decides to drive to 

work. There is no rational reason to charge a person who inhaled marijuana two 

weeks ago and who now decides to drive to the store to pick up a gallon of milk. 

While I certainly agree with the Legislature’s position that a person should be 

punished for driving while under the influence of a controlled substance because 

of the potential for tragic outcomes, the majority’s interpretation of the statute is 

arbitrary and wholly unrelated in a rational way to the objective of the statute. To 

say that driving while a person’s system contains any amount of a substance that 

has no pharmacological effect is a crime—given that under the most conservative 

estimates offered by the prosecution, the current scientific testing can find 

evidence of the substance for at least four weeks—is not permissible under the 

Constitution. It is this Court’s role to construe statutes to avoid a danger of 

unconstitutionality, see Harriss, supra at 618, yet today the majority has ignored 

22
 
this longstanding principle. A reasonable construction of the statutory language is 

possible—for example, finding that 11-carboxy-THC may be used as 

circumstantial evidence of a statutory violation—yet the majority has chosen a 

position that is contrary to the Constitution and the rights of our citizens. 

CONCLUSION 

Because the majority interprets the statutory provisions at issue contrary to 

the express wording chosen by the Legislature, as well as contrary to the intent of 

the Legislature, I must respectfully dissent. Today’s holding now makes criminals 

of numerous Michigan citizens who, before today, were considered law-abiding, 

productive members of our communities. Now, if a person has ever actively or 

passively ingested marijuana and drives, he drives not knowing if he is breaking 

the law, because if any amount of 11-carboxy-THC can be detected—no matter 

when it was previously ingested—he is committing a crime. The majority’s 

interpretation, which has no rational relationship to the Legislature’s genuine 

concerns about operating a vehicle while impaired, violates the United States 

Constitution and the Michigan Constitution. Therefore, I would affirm the 

decision of the Court of Appeals. 

Michael F. Cavanagh 

 Elizabeth A. Weaver 

 Marilyn Kelly 

23